Shantibai vs Jijabai and Others

G.K. Prasad, J.—This is plaintiff''s second appeal against the judgment of affirmance. Plaintiff filed suit for declaration of title as also for perpetual injunction. Civil Judge, Class II, Hoshangabad by judgment and decree dated 18.2.1981 passed in Civil Suit No. 69-A of 1977 dismissed the suit. Aggrieved by the same plaintiff preferred Civil Appeal No. 18-A of 1981 and the First Additional District Judge, Hoshangabad by judgment and decree dated 11.7.1983 dismissed the appeal. Plaintiff aggrieved by the same, has preferred this second appeal u/s 100 of the C.P.C. By order dated 13.12.1983 the appeal was admitted on the following substantial questions of law :

(i) Whether Gopibai immediately having remarried could inherit the property left by Loota and Biharilal ? According to law prevailed a t that time after remarriage under the Hindu Widow''s Marriage Act, the widow in question who remarried, lost all rights to the property of her husband ?

(ii) That the matter has already been decided by the High Court and other Courts. The findings of the learned Courts below are erroneous and perverse.

(iii) That the learned lower Courts failed to take the fact into consideration that the burden was on the respondents to prove that Gopibai was not remarried, was on the respondents which they have utterly failed to prove.

Admitted facts of the case are that Chhote died in the year 1953 and defendant Chironjiya is his daughter whereas Gopibai is his widow. According to the plaintiff Biharilal and Chhote were brothers by caste (Jat Bhai). Biharilal had a son Loota and four daughters, namely, Ganga, Suraj, Shera and Bhaggo. Chhote had only four daughters which included defendant Chironjiya, Biharilal and Chhote were the members of a Hindu undivided family and were owners of Khasra Nos. 49,323,321 and 229 having an area of 23.99 acres in Village Bikore. According to plaintiff her father Loota died on 11.10.1941 and her grand father Biharilal died on 24.10.1941 and on the date of death of the plaintiff''s grand father only surviving members of the Hindu undivided family was Chhote. According to the plaintiff after the death of Biharilal as also his son Loota, Chhote became the owner of the half- share of the property belonging to the Hindu undivided family and plaintiff as also defendant No. 2 being the heirs of Biharilal became the owner of the rest of the half share of the property. According to the plaintiff her father and grand father died when she was aged about two and half years only and as such she was not in a position to look after her interest herself. Her mother Gopibai defendant No. 2 during the life time of her father and grand father had developed illicit relationship with one Jhabbu and had fled away with him and stayed at different village. Case of the plaintiff is that after the death of the plaintiff''s father defendant No. 2 married according to the custom of the community and started living with her husband. It is the assertion of the plaintiff that she being a small child her interest was looked after by defendant No. 1 Chironjiya. It is the plaintiff''s assertion that defendant No. 1 looked after the property inherited by her as also inherited by the plaintiff from their father and right from the early age of the plaintiff till date defendant No. 1 gave account of the same. Defendant No. 1, according to the plaintiff, gave her information that her share will go to defendants 7 to 11, plaintiff made inquiry and learnt that her mother defendant No. 2 has, after the death of her father and grand-father, transferred all the properties of Chhote after her second marriage. Stand of the plaintiff is that she had no right for the same. Alternatively, the case of the plaintiff is that, in case, defendant No. 2 had any right over the property, transfer shall be valid limited to her share and the plaintiff''s share in the property cannot be transferred by defendant No. 2. According to the plaintiff, in the earlier litigation in relation to the disputed property, she was not a party and as such judgments rendered in those cases are not binding on her. Further stand of the plaintiff is that, in case, it is found that defendant No. 2 had any right over the property of Biharilal and Chhote, then in that case she had the right to transfer only half portion of the land having an area of 11.55 acres as also half portion of the house but defendant No. 2 has transferred the entire 11.55 acre of land and the house to defendants 7 to 11 and they are attempting to take possession of the same. Case of the plaintiff further is that defendants by virtue of the purchase in Civil Suit No. 83-A of 1968 and defendants 7 to 11 by virtue of purchase in C.S. No. 16-A/1970, want to forfeit her share. According to the plaintiff as she was not a party in the aforesaid suits, she is not bound by the same. In the aforesaid premises plaintiff sought declaration of title as also perpetual injunction against the defendants not to take possession of the land as also the house.

Suit was heard ex-parte against defendants 1 to 8 and 10. Case of defendants 9 and 11 is that defendant No. 2 is the widow of Loota and her husband as also her father Biharilal died in the year 1941. According to the Biharilal and Chhote were brothers and used to live jointly. According to Hindu Women Right to Property Act, 1937 she became the owner of the agricultural land as also other property belonging to Loota and Biharilal. According to these defendants, defendant No. 2 remained in possession of the property right from the year of death of Chhote upto 1953 and after coming into force of Hindu Succession Act, she became the full owner of the property left by Biharilal and Loota and in this capacity she had absolute right to sell the same in the year 1957. According to these defendants, plaintiff had no right over the suit property. Further plea of these defendants are that defendant No. 2 Gopibai had not married after the death of her husband nor she married upto 1957. According to these defendants the High Court in an earlier judgment has held that defendant No. 2 had not remarried after the death of Loota. These defendants have further averred that plaintiff is not the daughter of Loota and she became major in the year 1957 and as the suit has been filed in the year 1976, it is barred by limitation. It has been further averred that plaintiff was not in possession of the land personally and her possession was always through Chironjiya. In the aforesaid premises the defendants prayed for dismissal of the suit.

On the pleadings of the parties, the Trial Court framed various issues and while answering the same it held that plaintiff is the daughter of Loota and at the time of death of Loota and Biharilal, she was aged about two and half years. It is further held that plaintiff''s mother Gopibai defendant No. 2 did not marry immediately after the death of Loota. It is further found that defendant No. 1 did not look after the property of the plaintiff on her behalf and was in possession of the plaintiff''s share. It further negatived the case of the plaintiff that she could know about the transfer of the property by defendant No. 2 only in 1976 after her second marriage and the Trial Court held that plaintiff knew about the same in the year 1968. Trial Court further found that Chhote died in the year 1953 and the defendants 9 and 10 on the basis of decree passed in C.S. No. 83-A/88 and defendants 10 and 11 on the basis of the decree passed in C.S. No. 16-A/70 have initiated proceedings for taking possession of the suit property but the plaintiff was not a party in the aforesaid suits. Trial Court further held that the sale deeds dated 4.2.1957 and 21.3.1957 executed by defendant No. 2 Gopibai in favour of defendants Jhotsingh and Asharam are valid and defendant No. 2 became full owner after coming into force of Hindu Succession Act, 1956. After holding so, the Trial Court dismissed the suit. Lower Appellate Court affirmed the finding of the Trial Court that defendant No. 2 did not marry immediately after the death of Loota. While affirming the aforesaid finding the lower Appellate Court found that in support of her case about second marriage by defendant No. 2, she has examined herself and other witnesses Shadilal and Nanhelal. Evidence of the plaintiff was disbelieved on the ground that she was a small child at that time and as such she had no direct knowledge of the same, and accordingly disbelieved her evidence. PW 2 Shadilal and PW 3 Nanhelal have stated in their evidence that after the death of Loota defendant No. 2 Gopibai took Jhabboo as her husband. The lower Appellate Court as also the Trial Court disbelieved their evidence on the ground that it is not their claim that they were present at the time of marriage and the manner in which the marriage was performed has not been stated. Both the Courts below further found that the statement of these witnesses that Gopibai, defendant No. 2, took Jhabboo as her husband (Pati Bana Liya) does not mean that the marriage was performed. Shri Hemant Chauhan, appearing on behalf of the appellant, submits that the findings recorded by the two Courts below that the defendant No. 2 did not marry after the death of Loota is erroneous. He further submits that the Courts below have wrongly shifted the onus of proof on the plaintiff to prove the second marriage.

It is well settled that this Court in second appeal does not interfere with the concurrent findings of fact unless compelling reasons are shown. Reference in this connection can be made to the decision of the Supreme Court in the case of Navaneethammal Vs. Arjuna Chetty, , in which it has been held as follows :

"This Court, time without number, pointed out that interference with the concurrent findings of the Courts below by the High Court u/s 100, CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower Court."

Courts below on appreciation of evidence found that defendant No. 2 did not marry after the death of Loota and no compelling reason exists to upset the said finding. It was the plaintiff''s case that defendant No. 2 married immediately after the death of Loota and the plaintiff''s success in the suit depend upon its proof. Accordingly I am of the opinion that the Courts below rightly placed the burden to prove on the plaintiff to establish second marriage. I do not find any illegality in the same. Thus, the substantial questions of law framed are answered against the plaintiff.

In the result, I do not find any merit in this appeal and it is dismissed accordingly. As nobody has appeared on behalf of the respondents I am not inclined to award any cost of this appeal